Attorneys General

November 08, 2018

Climate isn’t the only environmental disaster we need to worry about, of course. Remember the 2010 Deepwater Horizon/BP oil disaster in the Gulf? Turns out that all those chemical dispersants which “BP applied directly at the spewing wellhead – about a mile below the Gulf of Mexico’s surface – failed to curb the oil’s spread” and made things even worse. (See some of our prior coverage here.) Apparently, no one has yet come up with an alternative plan the next time an explosion like this happens. So there’s that.

But back to climate. Voters in six Western states faced ballot initiatives to make “sweeping changes to environmental regulations.” These, of course, were heavily opposed by oil, gas and mining companies, which vastly outspent proponents of these measures with boatloads of out-of-state money. As a result, the ballot initiatives “largely flopped … including Colorado's increased restrictions on oil and gas drilling, Washington's carbon tax and Arizona's 50 percent renewable energy mandate."

But don’t feel discouraged yet. Consider this. While polluters were dumping money into states to defeat ballot initiatives, and Trump has been engaged in “full-throated … efforts to roll back regulations regarding climate change and other environmental issues,” seven governorships and four state AG flipped from Republican to Democrat this past election, and "[m]any of the new governors made climate change and clean energy part of their campaign platforms."

In other words, state-based actions on climate and clean energy now may be more likely.

"We're going to see a significant increase in litigating and policymaking at the state level with this new leadership," said Hogan Lovells partner Hilary Tompkins, a former solicitor at the U.S. Department of the Interior and counsel to former New Mexico Gov. Bill Richardson. "We're also going to see a lot of legal debates in the courts ramped up against the Trump administration where the states of these newly elected officials are going to be arguing their states' rights to enact policies addressing climate change."…

Expect the legal clashes over these divergent priorities to increase, experts say. Democratic AGs have already launched court challenges to a slew of deregulatory moves from the Trump administration, from the rollback of vehicle GHG standards to the reversal of a rule clamping down on methane emissions from gas wells on public lands.

It's safe to say those AGs have picked up some allies in such fights following Election Day.

Another hopeful note comes from passionate U.S. “climate kids” trying to fix the world before it's destroyed. Yet given the ever increasing rightward, pro-corporate shift of the U.S. Supreme Court, litigation may not be the best path forward - at least not for them, and at least not in the United States.

On the one hand, in Europe, “The Hague Court of Appeal ruled that the preservation of a stable climate system is a fundamental human right and ordered the Dutch government to meet its promises of making sharp cuts in greenhouse gas emissions."

On the other hand, “In the United States, a landmark climate case filed by 21 young Americans, ages 11 through 22, hit a snag at the U.S. Supreme Court.” Although right now, it’s just a snag.

Specifically,

Since it was first filed in 2015 during the Obama administration, the “climate kids” case, backed by some of the country’s top climate scientists, has made unexpected progress, with the U.S. Ninth Circuit Court of Appeals twice ruling that the case should proceed to a trial on its merits. In July, the Supreme Court, while noting that the “breadth of [Plaintiff’s] claims is striking,” nevertheless denied a Trump administration request to halt the suit….

But,

Then, the U.S. Supreme Court weighed in. Chief Justice John Roberts, in a highly unusual step, intervened on the U.S. government’s behalf and ordered a temporary halt to a federal district court trial … just 10 days before the trial was scheduled to begin on October 29. Roberts ordered a stay in the case while the plaintiffs responded to the government’s request to dismiss the suit.

Fortunately, a November 2 SCOTUS order said “it would not intercede in the case, allowing the trial to proceed.” However, “[l]egal analysts say that in all likelihood, the Juliana case will ultimately be rejected by the Supreme Court, which now includes two conservative judges appointed by Trump, Neil Gorsuch and Brett Kavanaugh.”

We shall see. Activists say they are not giving up. And as a result of this week's election, more and more states hopefully will be able to help.

April 25, 2017

As Bruce Springsteen once put it, “same old story same old act; one step up and two steps back.” So it goes with auto safety news today.

First, the positive. Longtime PopTort followers will remember our very extensive coverage of the Obama-era GM/Chrysler bankruptcies, and later, the horrendous GM ignition switch defect and cover-up, which led to hundreds of casualties (probably many more). The last time we covered all of that was in 2016, when;

A United States federal appeals court finally said what everyone already knew: In 2009, General Motors’ deceived the lower bankruptcy court – not to mention its own suffering customers – about its lethal ignition switch defect. This was just to avoid compensating customers injured or killed in crashes caused by that defect. And GM should not have been allowed to get away with that.

In other words, this 2nd Circuit decision stripped GM of product liability immunity, which the bankruptcy court had granted it, finally allowing crash victims to sue the company over this lethal defect.

We knew GM would go right to the U.S. Supreme Court for help, so our general feeling was, “it was good while it lasted.” But yesterday, the Court did something kinda extraordinary:

The U.S. Supreme Court let stand Monday a lower court ruling that General Motors can no longer avoid lawsuits from potential victims of ignition-switch defects that came before its bankruptcy.

The Supreme Court declined to consider an appeal from General Motors to keep a legal shield intact from its 2009 bankruptcy that would have protected the automaker.

WritesBloomberg, “The Supreme Court’s action is a setback for GM Chief Executive Officer Mary Barra, whose first year in the job was consumed by the ignition flaw linked to at least 124 deaths and recalls of 2.59 million vehicles.” GM’s statement indicates that the company will continue to fight these claims in court. (GM, take the advice of the stock analysts. Please stop. Just stop.)

Indeed when it comes to auto safety, events eventually seem to always turn negative. The Attorney General of New York – a guy whom we generally really like – pulled a real head-scratcher yesterday by settling with auto dealers who sell used cars with safety defects. As Consumer Reportswrites, this “[n]ew legal settlement means used cars for sale with open safety recalls may become more common.”

On Friday, New York Attorney General Eric Schneiderman announced settlements with 104 car dealerships that sold vehicles with unresolved safety recalls without informing the buyers.

The settlements allow dealers to continue to market and sell used cars with open safety recalls as long as they disclose the issue in their advertising and in showrooms before the sale.

It's the latest wrinkle in a consumer-unfriendly trend that has opened up the sale of more potentially unsafe used cars to the public.

The settlements with the dealerships come weeks after the Federal Trade Commission finalized settlements allowing auto dealer companies to market used cars with unresolved safety recalls, as long as they provide a general statement in advertising that the cars might be subject to a recall.…

Consumers Union, the policy and mobilization division of Consumer Reports, has criticized the settlement. "No company should offer to sell a car that has a defect that hasn't been fixed. It's an irresponsible practice that could put consumers at risk," says William Wallace, a Consumers Union policy analyst. It’s even more deceptive, he says, if the car has been labeled certified pre-owned.

Last year, five U.S. Senators sent a letter to the FTC and the National Highway Traffic Safety Administration, making clear that allowing dealers “to sell used cars subject to open safety recalls ...is a threat to public safety.” Moreover, “this ‘disclosure’ arguably amounts to nothing more than a legal disclaimer that could absolve dealers from their responsibilities and would likely do little, if anything, to meaningfully convey to consumers the existence of an open recall and dissuade them from purchasing such vehicles due to their safety risks.”

And just to tie a neat little bow around this whole mess of a story, among the kinds of defective cars that dealers sell?” GM cars with lethal ignition switch defects. So, a couple big steps back. Take it Bruce!

July 19, 2016

Wasn’t it just yesterday (or 10 months ago) that we received this “confidential memo” from the Volkswagen diesel cheating crisis management team? It noted, in part:

This week, ALEC officially launched a web site about what state lawmakers can do to immunize corporate lawbreakers like us. Can you feel a smile coming on?

Although the U.S. Department of Justice will probably just slap our wrists, we’re deathly afraid of private actions brought by state Attorneys General and class actions by angry customers.

Granted, that was all tongue-in-cheek - but it now seems kinda prescient!

Turns out that the state attorneys general of New York and Massachusetts have now sued the company following a massive investigation. As reported by the New York Times, these offices have uncovered evidence that “directly challenged Volkswagen’s defense over its emissions deception, calling the decision to thwart pollution tests an orchestrated fraud that lasted more than a decade, involved dozens of engineers and managers and reached deep into the company’s boardroom.”

Writes the Times, “the New York civil complaint, drawing on internal Volkswagen documents, emails and witness statements, depicts a corporate culture that allowed a ‘willful and systematic scheme of cheating,’ according to an advance copy of the suit.” And, "[f]or the first time, the New York complaint connects Volkswagen’s chief executive, Matthias Müller, to the scandal.” You may remember Müller as the guy who replaced that other guy, i.e., scapegoat CEO Martin Winterkorn, who quit in September. Although both deny any wrongdoing, the AGs found:

Mr. Müller and Mr. Winterkorn were informed in 2006 that Audis with 3-liter diesel engines needed additional equipment to meet American standards. Specifically, they needed a larger tank to hold the chemical solution used to neutralize nitrogen oxide emissions in the exhaust.

But Volkswagen and Audi, the complaint said, did not want to spend the money necessary to redesign the cars to accommodate larger tanks. Instead, the company decided to deploy defeat devices. Both Mr. Winterkorn and Mr. Müller held senior positions at the Audi unit at the time.…

Soon after, Volkswagen began preparing for a marketing offensive in the United States built around diesel. Internal Volkswagen documents said that diesel would be used to create an “environmental halo” over the brand.

The “clean diesel” advertising, according to the complaint, was false and part of the fraud Volkswagen perpetrated on consumers.

Here are some other highlights:

The complaint, in part, cited a tongue-in-cheek Audi commercial broadcast in 2010 that portrayed people being arrested by the “Green Police” for installing incandescent light bulbs, overheating their swimming pools or failing to compost. At the end, the Green Police inspect cars at a roadblock, waiving through a driver in an Audi A

After “engineers at West Virginia University published a study in which two unidentified diesel cars were found to have polluted up to 40 times more on highways than they did under laboratory conditions … there was widespread alarm" inside the company. That led to a 17-month “campaign to ‘mislead and confuse’ regulators and the public.” When California regulators got involved, “executives’ emails ‘began to reflect desperation and panic'” with “one executive, facing questions from suspicious California officials about the functioning of the emissions system, wrote to co-workers, ‘Come up with the story, please!’”

Gotta wonder how/why Volkswagen thought it would never get caught. Perhaps that’s the scariest question of all.

October 06, 2015

Class action lawsuits are among the most important tools that harmed, cheated and violated individuals and small businesses have to hold large corporations and institutions accountable. But with the start of the new U.S. Supreme Court term, there has been commentary from all sides (see e.g. here, here, here) recognizing one very scary possibility: by the end of this term, SCOTUS could decimate class actions. Or I should say, finish the job they already started when they allowed corporations to ban class actions via contracts, and force people into private, corporate-run arbitration systems. Even when companies commit civil rights violations. Even when nursing homes neglect or abuse patients. Even when huge cartels steal from small businesses. Even when bank and credit card companies cheat customers. (See more examples here.)

But if you think huge corporations and their allies in Congress are sitting back and waiting for the Court to act, I’ve got a Volkswagen “clean diesel” car I’d like to sell you! (C’mon. It’s right here on my back lot. Just a tiny mark-up for those “low emission” extras.)

Perhaps even more under the radar than these big Supreme Court cases is a little bitty congressional bill called H.R. 1927, the “Orwellian-named” Fairness in Class Action Litigation Act of 2015. This bill, which has already been approved by the U.S. House Judiciary Committee and sent to the House for a vote, would make it virtually impossible for any class action to proceed. Yes, all the examples above would be covered. But you'd no longer need a contract to be shut out of court. As long as you were harmed, cheated, defrauded, abused or violated and tried to join with others to sue, your case would be thrown out of court almost immediately under this bill.

ALEC wants to make class actions impossible to bring, so hundreds of thousands, or perhaps millions of victims, can’t join together in a lawsuit against us [Volkswagen]– even though we stuck the exact same cheating software in every single one of their cars. Just look at the hurdles and burdens their bill would place on our (likely ex-) customers. They'll all have to hire their own attorney and go through the time and expense of proving their cases one by one by one (which we expect they'll never do.)

But if H.R. 1927 became law, states could just sit back and relax while Congress did the dirty work for them – courtesy of the bill’s prime sponsor, House Judiciary Committee Chairman Bob Goodlatte (VA-R). (His own Virginia constituents would be shut out of court by this legisation.) As we wrote last April,

While H.R. 1927 doesn’t come out and simply prohibit class action suits, it establishes criteria that is nearly impossible for plaintiffs' to meet.…

Slews of cases and victims would be disqualified from bringing a class suit. The requirement that every member of a class have the same type and extent [now “scope”] of injury would preclude numerous class actions over predatory lending practices, anti-trust violations, employment law violations, unfair bank overdraft policies, denial of insurance benefits, and more - much more than I can mention. Even victims of the BP oil spill would be covered by this bill.

Now add customers cheated by VW, who paid thousands of dollars in markups to get a "clean" diesel car. Even if VW can now “fix” their car, these customers will never own the car they thought they were buying. So not only are they out a lot of money, they were horribly deceived and many will want their money back. Wouldn’t you?

Class actions, which have now been filed in at least 32 states, are the only realistic way for angry customers to recover what they're owed. Some state AG’s are also stepping in as law enforcers, as they should. And while some state AG’s, like West Virginia’s, will try to recover compensation for their residents, most state AG’s lack authority to recover private damages for individuals (as opposed to civil fines which go to the state). And even if they have the authority, they usually lack the enormous resources needed to handle discovery in these cases, to hunt down documents and uncover what really happened. This detective work is something the private bar can often do best.

Some firms explained to the National Law Journal the reasoning behind several of these filings:

Many of the class actions are seeking reimbursement for the premium prices they paid, but others want much more than that. “Even if you give them a fix that is only to meet EPA regulations, they still didn’t get the fuel efficiency they wanted,” said Frank Pitre of Cotchett, Pitre & McCarthy in Burlingame, California. “Those folks might say: ‘I want my money back.’ ” …

One favorite venue is the Eastern District of Virginia, where Volkswagen’s U.S. headquarters is based in Herndon. Volkswagen Group of America Inc. has been named in nearly all the suits, and subsidiary Audi A.G., whose U.S. division is also based in Herndon, has been named in a few cases.

“We think that there’s certainly going to be witnesses and evidence centered in that district,” said Warren Burns, a partner at Burns Charest in Dallas. “It’s been my experience in cases of this size and complexity that invariably you’ll be drawn by the decision-makers, and those folks are in the headquarters.” …

But there’s also California. In addition to the California Air Resources Board, which assisted the EPA in uncovering the scandal, two electronics research laboratories in the San Francisco Bay Area were involved in recent testing of renewable fuels in Volkswagen’s diesel cars.

“We think there’s a gold mine of information here in Belmont about how bad these vehicles were performing and, what’s worse, continuing to tout these vehicles were performing very well and even better with renewable fuels,” Pitre said. …

“We have California defendants that we believe knew or should have known about the fact that the emissions were rigged,” said A. Barry Cappello, managing partner of Cappello & Noël in Santa Barbara.

In April, more than 50 national and state organizations sent a letter to Congress expressing strong opposition to H.R. 1927, including a broad array of prominent consumer, civil rights, immigration, labor, environmental, health, food and product safety, employment, housing, senior citizen, children’s, low-income and legal services organizations, among others. The groups said this bill “would effectively eviscerate consumer, employment and civil rights class actions.” The importance of class actions is clearer than ever. Time to let Congress know how you feel.

September 24, 2015

Today, the American Legislative Exchange Council (ALEC), the secretive group run and funded by big corporations that subsidize the involvement of conservative state lawmakers, officially launched a new website about its model legislation to immunize corporate lawbreakers. Coincidently, we just received a copy of this “confidential memo” from the Volkswagen diesel cheating crisis management team. I know. What are the odds?

2. We show that we’re no different – in fact, probably better - than the rest of the bottom feeders that make up the auto industry. (Hey, how’s this worse than Henry Ford II calling airbags “a lot of baloney.”) DONE.

3. We get with that U.S. group, the American Legislative Exchange Council (ALEC). I know, ALEC is so tainted that 120 companies have already quit. But let’s face it. Only a truly scorned organization can relate to what we’re going through right now. So I just buried ALEC’s enormous corporate membership fee in the $7 billion budget we think we need “to win back the trust of our customers.” Now let me show you why this is an excellent investment that will save us billions in the long run.

But before I do, let’s admit there are a few things we can’t do much about. We got caught by U.S. environmental regulators (and researchers from West Virginia, of all places.) This is terribly ironic since we don’t do much diesel car business in the U.S. Our European friends barely regulate us, making it a whole lot easier to cheat. Had we just stayed out of the U.S., we’d be golden. Although I have to say, U.S. auto safety enforcement is generally laughable and the U.S. Justice Department doesn’t care much either. To be honest, we weren’t terribly worried. But the EPA? Now that was a surprise. I just found out that ALEC basically wants to repeal all U.S. pollution laws. (Hope the Pope doesn't find out.) If we only knew about ALEC sooner!

But now that we do, the timing couldn't be better. This week, ALEC officially launched a web site about what state lawmakers can do to immunize corporate lawbreakers like us. Can you feel a smile coming on?

Although the U.S. Department of Justice will probably just slap our wrists, we’re deathly afraid of private actions brought by state Attorneys General and class actions by angry customers. These have already begun. Turn’s out that ALEC’s top civil justice priorities are bills to ensure these very cases never get anywhere. It’s as if ALEC was reading our minds!

ALEC’s model bill “would effectively eliminate the critical private enforcement provisions that give these laws their power.… [It] is actually a wrecking ball to destroy one of the building blocks of consumer protection, namely the private enforcement of state unfair and deceptive practices acts. It does this by systematically weakening each and every provision of these laws, such as lower burdens of proof, special damages, and attorney’s fees, that were designed to provide consumers with access to justice for small economic wrongs.

One of my absolutely fav’s is this provision: “in no event may any action be brought under this chapter more than [four (4)] years from the first instance of the act or practice giving rise to the cause of action.” We started cheating six years ago! How'd they know? That’s just spooky.

And there’s more. This bill contains a complete ban on punitive damages. And here’s what I love about ALEC. They propose not only limiting punitive damages in consumer protection cases. They have an entire bill aimed at limiting punitive damages in any kind of case brought by people we harm. This kind of law is incredibly important to corporate lawbreakers like us. It means civil damages will never threaten our bottom line, and we’ll be just fine even if we keep harming people.

Then, ALEC wants to make class actions impossible to bring, so hundreds of thousands, or perhaps millions of victims, can’t join together in a lawsuit against us – even though we stuck the exact same cheating software in every single one of their cars. Just look at the hurdles and burdens their bill would place on our (likely ex-) customers. They'll all have to hire their own attorney and go through the time and expense of proving their cases one by one by one (which we expect they'll never do.) Any one of these provisions alone could immunize us, but several dozen? This bill is a true embarrassment of riches.

And those lawsuits by State AG’s? ALEC’s bill would make it nearly impossible for states to hire outside counsel to help, which could prevent many cases from going forward at all. You can read more about that bill here. And should any of our cars have product defects that lead to car crashes and injuries (or deaths), ALEC has a variety of options to immunize us there, as well.

And here’s what else I love about ALEC. Everything they do is entirely behind closed doors. They kick reporters out of meetings. They tell members of the public “NO” when they ask to participate in ALEC activities.

So you see why we must join ALEC today. We’ve broken the law. We’ve harmed a lot of people. This is an organization just for victims like us!

April 02, 2015

If I didn’t know better, I’d think corporate wrongdoers have decided to come clean with the American public about all the harm they’re causing. Every time you turn around, there’s some new “transparency” bill coming out of their lobby shops.

Take translucence-sounding bills like the “Private Attorney Retention Sunshine Act,” peddled to states by the American Legislative Exchange Council, or one called “Transparency in Private Attorney Contracting” (TIPAC). Groups like the U.S. Chamber of Commerce support these bills (e.g., see them praise enactment of one in Arkansas this week), while at the same time working to limit state Attorney General consumer protection authority and oust pro-consumer AG’s. These so-called “sunshine” bills would accomplish the same general goals by, among other things, making it harder for states to find competent counsel in costly and complex cases against corporate lawbreakers, while allowing these same lawbreakers to spend an unlimited amount of resources on their own attorneys. (See more here.) Does anyone really think transparency is the goal here?

Or take the asbestos industry’s FACT Act, aka the "Furthering Asbestos Claim Transparency (FACT) Act of 2015," which we last covered here. As we noted before, the asbestos industry engaged in one of the worst corporate cover-ups in history just so they wouldn’t have to pay compensation to their victims, and they still insist on confidentially when settling cases. So now, they want Congress to pass a bill requiring asbestos trusts to disclose on a public web site private, confidential information about every asbestos claimant and their families, including their names, addresses, where they work, how much they make, some medical information, how much they received in compensation and the last four digits of their social security numbers. At the same time, as noted by an earlier New York Times editorial, the legislation does not ask the companies to do one thing to help the victims, or to disclose any information that could help a claimant with his or her case. The bill would also slow down or stop the process by which the asbestos trusts review and pay claims, so that many victims would die before receiving compensation. Does anyone really think transparency is the goal here?

When it comes to corporate cover-ups, not much has changed. Check out these stories, for example.

Yesterday, the huge government contractor KBR agreed to pay $130,000 to settle with the Securities and Exchange Commission for using employment agreements to muzzle whistleblowers, specifically requiring “witnesses in certain internal investigations interviews to sign confidentiality statements that could have kept them from reporting possible securities-law violations to authorities.” And the problem is not limited to KBR. The Wall Street Journalreported in February,

In recent weeks the agency has sent letters to a number of companies asking for years of nondisclosure agreements, employment contracts and other documents, according to people familiar with the matter and an agency letter viewed by The Wall Street Journal. The inquiries come as SEC officials have expressed concern about a possible corporate backlash against whistleblowers.

Some of these types of documents sometimes include clauses that impede employees from telling the government about wrongdoing at the company or other potential securities-law violations, according to lawyers who handle whistleblower cases and some members of Congress. In some cases, the firms require employees to agree to forgo any benefits from government probes, effectively removing the financial incentive for participating in the SEC program.

Takeda Pharmaceuticals, Asia’s largest drugmaker, has offered to pay more than $2.2 billion to settle claims that it hid the cancer risks associated with its Actos diabetes medicine.…

The sum could close out more than 8,000 lawsuits in federal and state courts that have been launched against Takeda and have lingered for three years. The deal would amount to about $275,000 for each case.

Takeda is accused of covering up signs that Actos can lead to bladder cancer.

Or how about the herbal supplement industry, which has been covering up the fact that its supplements contain lead, mercury, and arsenic instead of actual herbs. Now 14 state AG’s want Congress to investigate.

Corporate lawbreakers and their support systems might want to change their talking points. "Transparency - as long as we've already been caught by law enforcement."

February 13, 2014

Food addiction is no joke. In fact, “Experiments in animals and humans show that, for some people, the same reward and pleasure centers of the brain that are triggered by addictive drugs like cocaine and heroin are also activated by food, especially highly palatable foods” like sugar, fat and salt. (See, e.g., “Hello, My Name is Jocelyn and I'm a Beignet-addict.” Sorry, didn’t mean to joke. But really, who’s been to NOLA lately and hasn’t become a beignet addict?

Actually, as we also know, food addiction caused by sugar, fat and salt also plays an “important role in obesity.” I’m sure you’ve already read, seen or at least head about all the books and movies coverning this problem.

So I, for one, am pleased that, “Lawyers are pitching state attorneys general in 16 states with a radical idea: make the food industry pay for soaring obesity-related health care costs.” WritePolitico:

It’s a move straight from the playbook of the Big Tobacco takedown of the 1990s, which ended in a $246 billion settlement with 46 states, a ban on cigarette marketing to young people and the Food and Drug Administration stepping in to regulate.

There are plenty of naysayers, just as there were in 1994 when Mike Moore, Mississippi’s attorney general, famously suggested suing the tobacco industry. But a number of nutrition and legal experts think a similar strategy could be applied on the food front — especially as obesity-related diseases have surpassed smoking as a major driver of health care costs.…

[Some predicte that] “lawyers will eventually home in on “food addiction,” a theory pioneered by former FDA Commissioner David Kessler.

Sometimes, litigation is on the only way to reign in this industry - including retailers - which often operate without much legal accountability. Today, Reuters in the New York Timesreports that,

Kroger, the biggest supermarket operator in the United States, faces a lawsuit claiming it deceived consumers by marketing a store brand as products from humanely raised chickens when the animals were raised under standard commercial farming.

The complaint, filed late Tuesday in Superior Court of California in Los Angeles County, is seeking class-action status against Kroger, accusing it of misleading California consumers with claims about the grocer’s “Simple Truth” premium-priced store brand of chicken. The products are packaged with labeling that states the animals were raised “in a humane environment,” but the lawsuit says they are produced by Perdue Farms, which has followed industry practices like electric stunning of birds before slaughter.

The U.S. Food and Drug Administration is investigating the illnesses of children in three states in recent months that have been linked to Uncle Ben's infused rice served in schools.

The cluster of illnesses have affected children in Texas, Illinois and North Dakota. At three schools in Katy, Texas, 34 students and four teachers experienced skin reactions, burning, headaches and nausea last week after eating Uncle Ben's "Mexican flavor" infused rice. … Mars Foodservices, which produces the product, has recalled 5- and 25-pound bags of various rice products primarily sold to schools, restaurants, hospitals and other commercial establishments. The products, however, can also be found at warehouse retail outlets, the FDA said.

They include the company's roasted chicken, garlic and butter, cheese and Spanish flavors. A full list of the recalled rice items can be found here. The company is recalling all bags and all lot numbers of the products produced in 2013.

December 17, 2013

I have a thought. Let’s round up all the folks from the Americans Tort Reform Association – the corporate folks who produce that (both) sad and hilariousJudicial Hellhole report each year - and make them all spend a year together somewhere. There’d be only one requirement for this new hot spot: all those civil justice cases that ATRA abhors so much would be banned. Illegal. Verboten! Let’s call this new place, I dunno, ATRA Paradise!

Lead paint. Unlike other cities, ATRA Paradise won’t get any clean-up help from the paint companies who “knew as early as 1912 that lead paint caused brain damage in babies and children, yet … marketed this paint specifically for use in nurseries, and directed advertisements at babies and children.”

Unsafe drug vials that lead to events like Hep C outbreaks. Also, drugs that mislead consumers due to their manufacturers’ unfair and deceptive acts. Outside of ATRA Paradise, lawsuits by states against deceptive drug companies result in millions of dollars to state governments. Guess they’ll just have to raise taxes instead!

Hospitals with rampant medical errors - the third leading cause of death in the U.S. We all have to live with that problem but at ATRA Paradise, their catastrophically-injured child will just have make do on Medicaid!

I don’t know about you, but when I think about “Attorneys General”
these days, the word “deranged” comes to mind. I’m not even talking about Eric Holder. Stealing confidential info? Big deal, that’s our specialty!
(He should have asked for our help, am I
right?)

I am talking about the AG variety coming out of radical
states like South Dakota, where the state AG is wasting taxpayer money
“spending a lot of time” (his words) trying to prevent people from being scammed
by so-called “bad people” from Canada who are calling and telling people they have
an error on their tax returns. Don’t
people know that if a Canadian calls they shouldn’t pick up the phone?

Or Missouri, where the tree-hugger AG has filed a lawsuit against the owners of the Bridgeton Sanitary
Landfill for violating environmenal laws just because they leaked hazardous chemicals in the air and black liquid leachate into groundwater, upsetting area residents who “for
years have been putting up with the stench of a burning landfill.” Duh, why don't they just move?

And now, 43 state AG’s are asking the FDA to “place a ‘black
box warning’ on labels of the opioid category of prescription-pain relievers to
alert pregnant women that use of such drugs may harm infants.” They say that “the use of opioids ‘has
increased at alarming levels,’ triggering more cases of a condition known as
Neonatal Abstinence Syndrome.” Let me
just say that the federal government doesn’t need any “help” from the states. Don’t they know that the FDA is perfectly
able to handle any and every little safety hiccup that comes along?

All I can say is, thank you (in advance) U.S. Supreme Court.
As luck would have it, next week, the Justices are meeting to decide whether to take a
couple cases that could – hopefully - once and for all block a bunch of AG
lawsuits. (Well, at least make it far
more difficult for any AG to bring one.) WritesReuters today:

A federal statute passed in
2005, known as the Class Action Fairness Act (CAFA), aimed to give federal
courts jurisdiction over lawsuits involving large numbers of plaintiffs. But it
is not clear whether the statute was meant to apply to suits filed by state
attorneys general seeking to recover damages for their citizens.

Oh, it will be clear soon enough. Because if history is any guide, we
know that SCOTUS won’t hesitate to decide what Congress “really meant to say”
even though they forgot to actually write it in the statute. (Like here.) Especially if that means flooding the federal
court system with even more lawsuits that it cannot possibly handle. SCOTUS will do anything to protect us, that much we know.

Continues Reuters:

[The states say that] CAFA makes no
reference to lawsuits filed by state attorneys general and that imposing
federal jurisdiction on their lawsuits would infringe on their sovereignty.
They also argue that as states, they should not be considered
"citizens" for diversity purposes under CAFA.

So far, only the 5th Circuit has
agreed with corporate defendants. In the price-fixing case brought by the
Mississippi attorney general against LCD makers, the court adopted a so-called
"claim-by-claim" approach that analyzes who would benefit from a
lawsuit, not simply who brought it, when deciding jurisdiction.

In his petition to the Supreme Court,
Mississippi Attorney General Jim Hood argues that the 5th Circuit's decision
conflicts with Supreme Court precedent.

“This Court has consistently held
that a state’s overall interest in the case it has brought in its name is the
determinative inquiry, not who may ultimately benefit from the relief sought,”
wrote lawyers for Hood's office.

March 18, 2013

It’s quite a week for 50th Anniversaries! On March 22, it will be 50 years since The Beatles released their first album. But even more importantly than that (!), today marks the 50th Anniversary of one of the most important U.S. Supreme Court decisions ever – Gideon v. Wainright, where the court unanimously ruled that criminal defendants have the right to counsel and if they cannot afford one, an attorney must be provided.

Sadly, though, so much coverage of Gideon today focuses on the unfulfilled promise of that landmark “unfunded mandate." (See, e.g., here, here.) Andrew Cohen writes in The Atlantic

Today, there is a vast gulf between the broad premise of the ruling and the grim practice of legal representation for the nation's poorest litigants. Yes, you have the right to a court-appointed lawyer today -- the right to a lawyer who almost certainly is vastly underpaid and grossly overworked; a lawyer who, according to a Brennan Center for Justice report published last year, often spends less than six minutes per case at hearings where clients plead guilty and are sentenced. With this lawyer -- often just a "potted plant" -- by your side, you've earned the dubious honor of hearing the judge you will face declare that this arrangement is sufficient to secure your rights to a fair trial.

For people stuck on the wrong side of the civil law, however, the situation is worse. Even the elusive, vulnerable promise of Gideon does not apply to them. On Saturday, the New York Times ran a front page story called “Right to Lawyer Can Be Empty Promise for Poor":

Civil matters — including legal issues like home foreclosure, job loss, spousal abuse and parental custody — were not covered by the decision. Today, many states and counties do not offer lawyers to the poor in major civil disputes, and in some criminal ones as well. Those states that do are finding that more people than ever are qualifying for such help, making it impossible to keep up with the need. The result is that even at a time when many law school graduates are without work, many Americans are without lawyers.

The Legal Services Corporation, the Congressionally financed organization that provides lawyers to the poor in civil matters, says there are more than 60 million Americans — 35 percent more than in 2005 — who qualify for its services. But it calculates that 80 percent of the legal needs of the poor go unmet. In state after state, according to a survey of trial judges, more people are now representing themselves in court and they are failing to present necessary evidence, committing procedural errors and poorly examining witnesses, all while new lawyers remain unemployed.

“Some of our most essential rights — those involving our families, our homes, our livelihoods — are the least protected,” Chief Justice Wallace B. Jefferson of the Texas Supreme Court, said in a recent speech at New York University. He noted that a family of four earning $30,000 annually does not qualify for legal aid in many states.

James J. Sandman, president of the Legal Services Corporation, said, “Most Americans don’t realize that you can have your home taken away, your children taken away and you can be a victim of domestic violence but you have no constitutional right to a lawyer to protect you.”

The problem, of course, is that with such unfair budgetary cutbacks, there is no way to pay lawyers for doing this work. So there’s a glut of good lawyers (and many enthusiastic new lawyers finding few job opportunities) anxious to do this work, but they can’t. Writes the Times,

With law school graduates hurting for work, it may appear that there is a glut of lawyers. But many experts say that is a misunderstanding.

“We don’t have an excess of lawyers,” said Martin Guggenheim, a law professor at New York University. “What we have is a miserable fit. In many areas like family and housing law, there is simply no private bar to go to. You couldn’t find a lawyer to help you even if you had the money because there isn’t a dime to be made in those cases.”

You’re probably now thinking that the right to counsel is a complete illusion for anyone except the 1%, but I am here to tell you that you’re wrong - at least for people who have been seriously injured due to the wrongdoing of others. That is because in this country, we have what is known as the "contingency fee" system. It is a system that provides anyone with a legitimate injury case, regardless of their financial means, with access to an attorney. The attorney takes a case without charging any money up front and is paid only if the case is successful. If the Times story is any guide, it is clear that without this system to finance a case, everyday Americans would find it simply impossible to afford counsel when they've been hurt. The difference, of course, is that these are cases involving damages. Fees are paid not by the victim, and not by the government - but by the wrongdoer. Because of that, attorneys can actually afford to help people.

This system has worked without interference for centuries. But that all ended in the 1980s, when lobbyists for big corporations, medical societies and the insurance industry began to attack this system, lobbying for government-imposed schedules and “caps” on contingency fees. The impact of such lopsided government regulation is obvious. Wrongdoers could continue to hire the best attorneys money could buy while the sick and injured could not. Today, half the states in this country have some type of law dealing with contingency fees and most block victims’ ability to hire counsel.
(See more here.)

And now, the same kind of corporate attacks have been launched against underfunded and underfinanced state Attorneys General who hire outside counsel on a contingency fee basis. (We’ve noted this before, most recently last week discussing how much money the federal government was paying corporate law firms, out of taxpayer funds, and by the hour):

We wouldn't be so hot and bothered by this had Corporate America not launched a brazen, hypocritical campaign attacking underfunded and under-resourced state Attorneys General who also hire outside counsel. Yet state AG's do so on a contingency basis. In other words, there are no costs to the taxpayer. The AG's hire counsel to help them protect their citizens in many diverse areas, including consumer protection, antitrust and utility regulation, and environmental protection. What’s more, they often recover millions of dollars for state taxpayers!

So needless to say, it’s not a perfect system. Too few legitimate cases make it to court for all kinds of reasons, including not only limits on state AG’s ability to hire contingency fee attorneys but also the hundreds if not thousands of so-called “tort reforms” that have passed since the 1980s.

But even so, thanks to the contingency fee system, at least sometimes the sick, injured and violated do get justice. There is something there, perhaps, to celebrate.

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